What did Ginsburg think Roe would do?

Ed MorrisseyPosted at 8:52 am on July 9, 2009

The New York Times has a lengthy interview with Supreme Court Justice Ruth Bader Ginsburg for its Sunday magazine, but they have already published it to their website to generate a little buzz. They may get more than they think from this passage, in which Ginsburg explains what she thought the Supreme Court intended when it found a right to abortion in Roe (emphasis mine):

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

So Ginsburg thought the court wanted a method of eugenics that the government could use to reduce growth in certain …. populations … that we didn’t want expanding? No wonder she has occasionally admitted that Roe was a bad decision.

Bear in mind, too, that this explanation strongly implies that she held that view not just until she could get clarification by reading the decision or talking with the justices. Don’t forget that at the time Ginsburg had already made herself prominent in feminist circles, establishing in 1970 the first law journal exclusively devoted to feminist issues and holding a tenured position at Columbia from 1972-80. In fact, she argued cases before the Supreme Court during that period. And it wasn’t until 1980, which is when the Supreme Court decided McRae, that Ginsburg realized it didn’t have anything to do with allowing the government a mechanism to practice eugenics.

In that seven-year period, did Ginsburg use her considerable clout to argue against Roe, if that’s what she believed, or for that matter, against government funding of abortions? If not, shouldn’t we surmise from that silence that either (a) Ginsburg had few problems with government pushing a eugenics program, or (b) that she was willing to shrug off the eugenics in order to support Roe for the access to abortion? (h/t: WND)